The week alone I revised a couple of policies on workplace violence and harassment, spoke to 100 employers at an industry association meeting about how to comply by June 15 and conducted an assessment of workplace violence with a client.

Yes, there is a lot to do, but, given that it is a Friday morning before a long weekend and I’m feeling particularly cheerful, I wanted to point out that it is not all doom & gloom. A pattern I’m seeing emerging is the number of opportunities this new legislation is creating for employers:

Conversations about improving workplace health and safety: Obviously everyone benefits from a safer workplace. Addressing risks of both violence and harassment may raise issues that are bubbling under the surface, clear up long-standing issues, or at least lessen future incidents. For employers, fewer incidents of workplace violence and harassment means fewer resources, time and money spent on these issues, and a decreased risk of liability, all of which are good for the bottom line of the company.

Raise awareness: The training and the revised and/or newly introduced policies on workplace violence and harassment are opportunities to educate your employees about the issues. If done well, it can both clarify what is not harassment (e.g. not every unkind word amounts to harassment) and identify what is workplace violence (e.g. certain "horseplay" or practical jokes that cross the line)

Educate on domestic violence: This issue raises the most questions and concerns, which means people are actively turning their mind to it. While I don’t believe employers should become the watchdog of their employees’ private life – and very few are qualified to actively counsel on this issue – as of June 15, there will be an express legal duty to not turn a blind eye to the issue when it exposes any employees to the risk of physical injury in the workplace. This is an opportunity to gather resources and become aware of the telephone numbers, websites and booklets you could provide to an employee you suspect is suffering from domestic issue. As a start:

Assess the physical attributes of the workplace: In the course of the mandatory assessment, employers have the opportunity to revisit the basic physical attributes of their workplace: lighting, parking lot obstacles that may increase risks, battery life on panic buttons, general access to the building by strangers, family members and service providers, whether isolated areas should have a phone installed, etc.

Engage your employees: Employers need employee "buy-in" to make the entire exercise successful. Employers need the information from employees if any trouble is brewing on the floor, and employees need to understand that it is equally their responsibility to relay information about risks of violence and harassment in the workplace. Safety issues often impact women more than men, so this is also an opportunity to strengthen the voice of women in your workplace and provide them with a vehicle to raise concerns about workplace safety.

Engage your union reps: Many union reps will welcome the opportunity to work with management on identifying and dealing with workplace violence and harassment. Often your union rep is the front-line gatekeeper that has to decide whether a complaint from a union member actually falls within "harassment" or "violence". If they are wrong and choose not to file a grievance, they may face a Duty to Fairly Represent complaint from their members. The conversations, training, assessment and updating of policies all assist the union and management to clarify what various expectations are and what are the general parametres of the legislation. While we are unlikely to see any overall decrease in grievances on the issue, hopefully these conversations can help eliminate some of the more frivolous complaints not contemplated by the legislation or the parties.

Engage high risk individual employees: Several employers have told me that they will use the training as an opportunity to address specific issues already at play in their workplace. For example, if you have two employees engaging in excessive flirting, and one of those employees has a spouse with a particular temper, after the training you can pull them each aside separately and point out how they fall squarely within the concerns raised by the domestic violence provisions of the Bill, and how your employer duties require you to pro-actively address the situation. Similarly, during the training, you can identify certain types of behaviour that may violate the new provisions and put your employees on notice that the workplace will be actively dealing with these issues (e.g. "horseplay", excessive practical jokes or teasing, etc).

If you have experienced other positive results from working on your Bill 168 compliance plan, I’d love to hear from you.

]]>https://www.canadaemploymenthumanrightslaw.com/2010/05/bill-168-not-all-doom-gloom/feed/0Bill 168 Assessments: Deadline is Around the Cornerhttps://www.canadaemploymenthumanrightslaw.com/2010/05/bill-168-assessments-deadline-is-around-the-corner/
https://www.canadaemploymenthumanrightslaw.com/2010/05/bill-168-assessments-deadline-is-around-the-corner/#respondTue, 11 May 2010 19:38:05 +0000http://eddielocal.com/2010/05/11/bill-168-assessments-deadline-is-around-the-corner/Becoming complaint with the new workplace violence and harassment law (Bill 168) has recently moved to the centre of many organizational radars. The deadline to comply is June 15, 2010, so there are about 5 weeks left to take the necessary steps to meet the requirements of the legislation. Lots to Do… Bill 168 passed last...… Continue Reading

]]>Becoming complaint with the new workplace violence and harassment law (Bill 168) has recently moved to the centre of many organizational radars. The deadline to comply is June 15, 2010, so there are about 5 weeks left to take the necessary steps to meet the requirements of the legislation.

determine protocol around domestic violence that exposes workers to violence in the workplace; and

determine protocol regarding the disclosure of information about a person with a history of violent behaviour that may expose a worker to violence.

Yes, there is a lot to do. Many organizations already have decent policies and programs on workplace violence and harassment and will simply have to tweak existing documents to comply. Others need to start from scratch.

Workplace Assessments

Virtually everyone, however, will be starting from scratch when it comes to the mandatory assessment of workplace violence. The amendment requires employers to "assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work." The assessment must take into account circumstances that are both common to similar workplaces and specific to your workplace.

And that’s it – there is no other legislative guidance that outlines what the assessment should look like, how comprehensive it should be, in what format it should be, etc.

I have given a number of training sessions to clients on how to conduct workplace assessments. One of the messages I try to get across is that this is not rocket science. It’s a matter of developing a comprehensive and logical checklist of the risks of violence in your workplace.

While it may be impossible to eliminate all risks of workplace violence and harassment, this exercise is about identifying risks so that steps can be taken to minimize those risks.

While the legislation only requires the assessment of workplace violence, I believe it is prudent – and not necessarily extra work – to include the assessment of workplace harassment in the exercise. Quite often, harassment is a preliminary step to violence and the two concepts cannot always be separated.

In general, employers, along with significant employee participation, will want to review the physical characteristics of your workplace to determine levels of risk, and to review past injury reports, security incident reports, human rights complaints and internal grievances to identify any patterns of behaviour or corners of the organization that may be at a higher risk.

Resources

Very recently, the Ontario Ministry of Labour and the Occupational Health and Safety Council of Ontario released some excellent resources to assist workplaces with becoming compliant:

What Employers Need to Knowexplains the various parts of the amendments, provides detailed resources about domestic violence, outlines how to develop the required policies and programs, and how to conduct the assessment.

A Toolboxincludes sample policies, an optional employee survey, and a template assessment worksheet to build on and cater to your workplace.

While there are many good consultants and organizations that can assist with conducting the assessment, for many workplaces, the Ministry of Labour’s resources will provide an excellent and cost-effective way to conduct the assessment in-house. Regardless of the route chosen, the HR team will need to dig through the existing (and sometimes very out of date) policies and documents that will inform the assessment, so it is impossible to completely outsource the project.

Of all of the tasks required by the new amendments, the assessment will likely be the most time-consuming and labour intensive exercise. Once you have your template up and running, however, future assessments will likely be much less of a burden.

Furthermore, the assessments should provide a great opportunity for organizations to cross-educate management and employees about where are the potential risks of workplace violence and harassment, and to inform each other about concerns that should be acted on before they escalate into serious situations.

]]>https://www.canadaemploymenthumanrightslaw.com/2010/05/bill-168-assessments-deadline-is-around-the-corner/feed/0Employment Law Resources for Employershttps://www.canadaemploymenthumanrightslaw.com/2010/04/employment-law-resources-for-employers/
https://www.canadaemploymenthumanrightslaw.com/2010/04/employment-law-resources-for-employers/#respondFri, 23 Apr 2010 08:18:30 +0000http://eddielocal.com/2010/04/23/employment-law-resources-for-employers/Earlier this week, I received an email from the owner of a small company who was frustrated at all of the resources available for employees and the lack of resources for employers. She pointed out that the various human rights commissions across Canada will often offer services to complainants, and that in general, the system...… Continue Reading

]]>Earlier this week, I received an email from the owner of a small company who was frustrated at all of the resources available for employees and the lack of resources for employers. She pointed out that the various human rights commissions across Canada will often offer services to complainants, and that in general, the system felt biased towards employees.

I agree that once a matter gets to a hearing, our arbitrators and decision makers acknowledge the power imbalance that often exists between an employer and an employee, particularly if the employee is unrepresented. This is the case throughout the law, and represents more of an attempt to ensure fair outcomes than any intentional bias towards one side.

Having said that, I thought it would be helpful to point out some useful (free) resources that do exist for employers:

(a) Ontario Employment Standards

Ontario Ministry of Labour Employment Standards Branch hotline – 416-326-7160. Put this in your speed-dial – they are very knowledgeable about the basic provisions of the Employment Standards Act and are a great place to start with many employment law questions.

A great resource for employers is the Employer’s Advocacy Council. The EAC is a non-profit organization that is a leading source of information, training and advocacy on workplace insurance, health and safety.

Although the Ontario Human Rights Commission (OHRC) no longer has carriage of files at the Human Rights Tribunal, the OHRC has produced a number of helpful publications over the years, including guides about hiring employees, developing compliant workplace policies, drug testing, employment-related medical information, and an extensive online publication called "Human Rights at Work". These guidelines are not binding on the Tribunal, in court or at an arbitration, but are useful minimum standards to use as a defence should an employee claim discrimination in the workplace.

The Human Rights Tribunal has a number of online publications, including a Respondent’s Guide (the one most used by employers) and a Guide to Preparing for a Hearing.

Employees can access the Human Rights Legal Support Centre, the new organization established last year when the Human Rights Tribunal started accepting cases directly from complainants, rather than having to go through the OHRC as a gatekeeper. The Centre is for "individuals throughout Ontario who believe they have experienced discrimination", not for employers.

Practical Tip: The Tribunal is now no different than any other legal proceeding, and given the assistance complainants (i.e. employees) can get through the Human Rights Legal Support Centre, I would caution an employer from trying to go it alone at the tribunal. Whether you retain a lawyer to help with just the response at the beginning, or with the entire process, including the legal arguments at the hearing, there is no way to avoid the fact that this is an increasingly complicated a legal forum.

The above list is just a start and I know there are many, many more resources out there. If you have a recommendation for a good employer advocacy organization, let me know and I’d be happy to post your link here as a resource to employers.

Resources readers have since suggested to me:

The Office of the Employer Adviser (OEA) is an independent agency of the Ministry of Labour that helps Ontario employers manage their workplace safety and insurance costs. They provide advice to any size employer, but represent primarily employers who employ fewer than 100 employees.

]]>https://www.canadaemploymenthumanrightslaw.com/2010/04/employment-law-resources-for-employers/feed/0Invitation: Update on Employment Lawhttps://www.canadaemploymenthumanrightslaw.com/2010/03/invitation-update-on-employment-law/
https://www.canadaemploymenthumanrightslaw.com/2010/03/invitation-update-on-employment-law/#respondWed, 10 Mar 2010 10:03:04 +0000http://eddielocal.com/2010/03/10/invitation-update-on-employment-law/My firm is hosting an employment law update on Wednesday, March 31, 2010 from 8:30-11:30am in Toronto, and we would like to open it up to attendees beyond our current clients. This will particularly be of interest to HR professionals and people within your organization who deal with day to day employment law issues. If you are interested in...… Continue Reading

]]>My firm is hosting an employment law update on Wednesday, March 31, 2010 from 8:30-11:30am in Toronto, and we would like to open it up to attendees beyond our current clients. This will particularly be of interest to HR professionals and people within your organization who deal with day to day employment law issues.

]]>https://www.canadaemploymenthumanrightslaw.com/2010/03/invitation-update-on-employment-law/feed/0Bill 168 – Ontario Workplace Violence and Harassmenthttps://www.canadaemploymenthumanrightslaw.com/2009/12/bill-168-ontario-workplace-violence-and-harassment/
https://www.canadaemploymenthumanrightslaw.com/2009/12/bill-168-ontario-workplace-violence-and-harassment/#respondThu, 17 Dec 2009 09:33:41 +0000http://eddielocal.com/2009/12/17/bill-168-ontario-workplace-violence-and-harassment/On December 9, 2009, Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 passed third reading in the Ontario legislature. This new law will amend the Occupational Health and Safety Act by introducing new duties on employers with respect to workplace violence and workplace harassment. It is anticipated that this...… Continue Reading

]]>On December 9, 2009, Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 passed third reading in the Ontario legislature. This new law will amend the Occupational Health and Safety Act by introducing new duties on employers with respect to workplace violence and workplace harassment. It is anticipated that this bill will be proclaimed shortly, and is scheduled to come into effect six months after that.

Companies therefore have until summer 2010 to fall into compliance with the new law.

In a nutshell, the bill requires employers to be far more assertive when dealing with workplace violence and harassment. General information can be found in these government backgrounders: Protecting People at Work and New Protections.

Highlights of the bill include the following requirements:

Develop and implement a policy that specifically deals with workplace violence and harassment

Develop a program to inform employees about the policy and to implement that policy on an on-going basis

Take reasonable precautions to protect workers from domestic violence that occurs in the workplace

Conduct workplace assessments on the risks of workplace violence, and to report back to the health and safety committee or representative, or if neither exist, directly to the employees

Identify risks of workplace violence from a person with a history of violent behaviour and determine what information should be disclosed to protect the safety of workers and

Allow workers will have the right to refuse to work if they believe that they are at risk of workplace violence.

The bill introduces some novel legal obligations, and I will provide updates on any interesting initiatives and guidelines that I come across over the next couple of months.